R v Strawhorn
[2005] VSC 102
•16 March 2005
| IN THE SUPREME COURT OF VICTORIA | Unrestricted |
AT MELBOURNE
CRIMINAL DIVISION
No. 1427 of 2003
| THE QUEEN |
| v |
| WAYNE GEOFFREY STRAWHORN |
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JUDGE: | COLDREY J | |
WHERE HELD: | MELBOURNE | |
DATE OF HEARING: | 15 MARCH 2005 | |
DATE OF RULING: | 16 MARCH 2005 | |
CASE MAY BE CITED AS: | R v STRAWHORN | |
MEDIUM NEUTRAL CITATION: | [2005] VSC 102 | |
Revised 31 October 2006 in accordance with provisions of suppression orders.
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Criminal Law and Procedure – Application for discharge of jury – High degree of need created by evidence of Crown witness – Application granted.
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr J. Rapke QC with Mr D. Maguire | Stephen Carisbrooke, Acting Solicitor for Public Prosecutions |
| For the Accused | Mr D. Allen SC with Mr J. McMahon | Galbally & O'Bryan |
HIS HONOUR:
An application has been made on behalf of the defence for the discharge of the jury consequent upon evidence given by the Crown witness, AA. Aspects of that evidence either singly or in combination are said to raise the requisite high degree of need for such discharge enunciated in R v. Boland[1]. In applying that test the admonition of the Full Court in Boland[2] should be borne in mind:
"Much depends in every case on the nature and degree of the alleged prejudice, the body of evidence already heard and yet to be heard, how far the prejudicial matter may be submerged and pushed into the background by the totality of the evidence and whether, in all the circumstances, a clear warning to the jury will be sufficient to avoid or dispel any prejudice and enable a fair trial to be held."
[1][1974] VR 849
[2](p.866)
It is convenient to deal with the relevant statements of AA in the order in which each was argued.
The first passage at p.601 of the transcript related to a meeting with Drug Squad members at the Hawthorn Football Club. It was in these terms:
"Question: 'When you refer to the whole team to whom are you referring?'
Answer: 'Wayne Strawhorn, Steve Paton, EE, Paul Firth, Dave Mitchell [apparently Miechel], basically everyone [and my note of it is] that's sacked'."
It was argued that such a description painted the accused Strawhorn as part of a corrupt police team and the situation was further inflamed by reference to the name of Miechel, a corrupt policeman who had received adverse publicity recently and will soon be standing trial. In my view, it is to draw too long a bow to assert that the accused could be adversely affected by this cursory reference which, in any event, was unlikely to have been recorded by all the jury and would soon be submerged in the totality of the evidence.
Additionally, I note that the transcript records the name given by AA as Mitchell, not Miechel which is certainly the name that AA appeared to mention to my ear, and, I suspect, that of the jury. I do not regard this submission as having substance.
The second topic of evidence to which objection is taken is found at pages 612 and 640, which are said to be linked. It concerns (at least initially) the delivery of Sudafed tablets to the Bandidos. The passages are as follows:
"Question: 'But you now don't remember what the actual quantity was on the first occasion?'
Answer: 'No, not the first occasion, no. I mean, we're talking about probably over 100, 120-odd chemical deliveries that I made so to be exactly precise about the exact number is just a bit hard'."
Later the witness was asked this:
"Question: 'You see there will be evidence, and I don't think that perhaps any of this is going to be in dispute, but there are numbers of other occasions when you sold things like iodine, hyperphosphorous acid, chemicals of that nature to the Bandidos; do you remember doing that?'
Answer: 'Yes. Look there was hundreds of transactions'."
I think that on a fair reading of the material in context the witness is talking throughout about the operation involving the Bandidos (Operation Schild) which, on the evidence, occupied a period of about six months. Moreover, it is capable in this context of referring to unauthorised deliveries. This is particularly so in light of the prosecution evidence of five authorised transactions and six unauthorised ones in respect of the Bandidos. At best the state of the evidence is ambiguous, at the worst it could be seen to relate to a series of unspecified, uncharged acts.
The third area of contention relates to what may be described as evidence of Operations. It follows a discussion of the Drug Squad operations in which AA was involved. These were listed in a chart placed before the jury with the consent of the parties. The specific evidence is found at pages 623 and 624. As part of an answer of AA on p.623:
"But in all these operations, I mean there was a lot more operations than what's shown on that chart."
"Question: 'Yes?'
Answer: 'But they just didn't seem to get busted. But there was plenty of chemicals went out to them, plenty of product came back, but they're still out there making the stuff'.
Question: 'And you say that some of these matters you became involved in and there are others that aren't on the sheet?'
Answer: 'There's a lot of jobs that aren't on the sheet at all. As I said, they're still out there making the stuff as far as I'm aware'."
It was submitted by the defence that this evidence had the effect of implicating the accused in further illegal acts. This, so it was argued, is not only highly prejudicial, but presents the defence with an insoluble forensic problem. If the defence were to tackle AA on this matter, then access to such documentation as Information Reports and police diaries would be required.
The Crown submission was to the effect that this evidence does not necessarily reflect adversely on the accused. It may merely mean that AA and the accused did their best but were not always successful. The problem with this argument is that the interpretation placed on this evidence by the defence is equally tenable. Whether the precise factual situation could be resolved by further questions in evidence-in-chief is, I think, problematic and fraught with danger.
The fourth topic of evidence addressed by the defence is at pages 630, 631 and 634. It emerged after questioning about money obtained from Kim Sloan and hence was in the context of transactions with the Bandidos.
It was conceded by the defence that the cross-examination of the policeman McIntyre raised the issue of payments of money during the pendency of Operation Schild but it was submitted that AA's evidence went much further. The relevant exchanges are as follows:
"Question: 'Did you ever hand any money over to Mr Strawhorn?'
Answer: 'I handed hundreds of thousands of dollars over to Wayne Strawhorn and that 5000 was actually used to make up 20,000 that I handed over to him only weeks after I'd made the 5000'."
The witness goes on to talk about how he had to retrieve the $5000 from other sources.
He was then asked:
"Was that 20,000 you've just spoken about that you gave to Mr Strawhorn the first sum of money that you handed to him, or had you previously handed money to him?"
Answer: "No I'd handed plenty of money to Wayne Strawhorn."
Later (p.634) the question was asked:
"All right, now you said that over the period of time that you were dealing with Mr Strawhorn and Mr Paton, you gave Mr Strawhorn hundreds of thousands of dollars?"
Answer: "Hundreds of thousands, that's correct."
A subsequent passage is related specifically to the Bandidos, and the payment to Strawhorn of $50,000. It continues:
"What was the $50,000 from?"
Answer: "That was the result of product that had been gotten back from the Bandidos, distributed by me, money gotten back off drug dealers and handed on to Wayne Strawhorn."
The Crown were entitled to lead this latter evidence but, placed in context, the reference to hundreds of thousands of dollars may be interpreted as relating to additional illegal transactions involving Strawhorn and Paton.
It was indicated by the Crown that these payments extended from 1999 to 2002 but it was not the prosecution case that they were necessarily illicit payments. Further, it was suggested any ambiguity could be cleared up in further examination in chief. I am not so confident of this.
The defence argue that if a sensible forensic challenge to this evidence were to be mounted, relevant documentation would need to be obtained and analysed in an endeavour to demonstrate the legitimacy of any such payments. It was said that AA had not previously been tested about any of these matters. Indeed, the Crown evidence of enrichment was limited to $25,000.
The Crown effectively conceded that the defence should, if necessary, be given time to seek and digest any relevant documentation before embarking upon any cross-examination on this issue. However, the primary defence submission was that the evidence should not have been led for the reasons to which I have already referred.
The fifth criticism of the evidence of AA related to what was described as "the green light issue", and is found at pages 631, 634 and 635. It is preceded by the affirmation by AA that the selling of Sudafed and other pre-cursor chemicals to the Bandidos was generating a lot of money.
"Question: 'Yes, who would you give it [i.e. money] to and in what sort of quantities?'
Answer: 'I would give it to Wayne Strawhorn or Steve Paton, mainly Wayne. But quite often when I got product back, they wouldn't want the product and I'd have to distribute that through drug dealers who I still had working in - on the Peninsula, and then retrieve the money off the drug dealers and then hand that on to Mr Strawhorn.'
Question: 'OK. Now, when you say you had drug dealers still working on the Peninsula, are you intending to convey that you were still involved in drug trafficking, other than what you were doing for the Drug Squad?'
Answer: 'Yes, I'd been given a green light by Wayne Strawhorn to continue my drug operating activities, so as we could get rid of the speed that was being made by the criminals that we were supposed to be catching to be able to give him the money'."
At p.634, there is the reference that I have already quoted about giving money back to the accused that was obtained from drug dealers.
At p.635, there is the question:
"Well, presumably other than the money you were getting back from the drug dealers with whom you remained in contact, most of the money would've been coming from the Bandidos?"
Answer: "Yes, yes, most of the money was coming from the Bandidos but there was also - there was a lot of product coming back from the Bandidos also that the Drug Squad couldn't distribute. Some of it they did but some of it they couldn't. And the stuff that they couldn't distribute, then they'd allow me to distribute that through dealers that were down on the Peninsula, then that money would also be returned to the Drug Squad."
Question: "Yes."
Answer: "So there was just a lot of money and a lot of drugs going everywhere, to be quite honest."
The defence conceded that the Crown was entitled to open up this aspect of drug trafficking so far as it related to the Bandidos, including the evidence of a payment to the accused of $50,000. It was put, however, that the evidence should have been limited to that period of activity.
On my reading of this material, I am not convinced that the evidence of AA on this specific issue does go beyond the period of the Bandidos, or that the jury would regard it as doing so. However, the suggestion of the Crown that this activity would not be seen as improper by a jury is in my view disingenuous. Indeed, the thrust of the Crown evidence is that the drugs and money were the product of the illegally supplied pseudoephedrine (either in pure form or extracted from the Sudafed tablets). It was certainly not suggested by AA that he was permitted to dispose of the material in the name of credibility. Neither of these matters would make this evidence inadmissible, given that the quantum of money flowing to the accused has become a live issue. Accordingly, there is nothing in this defence contention which provides any basis for discharging the jury.
The sixth defence complaint concerns further evidence by AA of the accused trafficking in pseudoephedrine. Transcript references are contained at pages 633 and 634, 642 and 643 in these terms:
"Question: 'Now, are those the only four occasions in which you were involved in the trafficking of pseudoephedrine on behalf of Mr Strawhorn and Mr Paton?'
Answer: 'No, it wasn't.'
Question: 'I'm talking about pure pseudoephedrine now?'
Answer: 'Pure pseudoephedrine, yes. There was also pseudoephedrine coming out of the Sigma factory that was being distributed by me that was - the Drug Squad had full knowledge of.'
Question: 'That's a different thing to the four we've spoken about?'
Answer: 'Yes.'
Question: 'Is that a situation where there was suspected to be someone inside Sigma who was stealing some pseudoephedrine?'
Answer: 'Yes, there was someone inside the Sigma factory stealing pseudoephedrine and was going to JJ, then it was coming to me'."
The matter was returned to later (p.642-3):
"Question: 'Now, you made mention of your ability to get some pseudoephedrine apparently which was coming out from the back door of Sigma, something of that nature. Did you report that fact to the Drug Squad?'
Answer: 'That was reported to the Drug Squad very early in the piece. There was an ongoing investigation but nothing ever came of it, other than the Ethical Standards Department involved. The chap from Sigma was actually sacked but while it was in the hands of Wayne Strawhorn, it was just simply a money-making venture'."
It was pointed out by the defence that this evidence constituted further allegations of trafficking in pseudoephedrine either by the accused or with his agreement. I do not regard any other interpretation as reasonably open. The defence further asserted that there was added prejudice because the material suggested that the investigation of this matter was somehow fudged. I regard that inference as being too broad.
However, if this new uncharged act is to be challenged by the defence the need to seek further documentation has been foreshadowed by senior counsel. This is in addition to the material required to answer the allegations which I have already canvassed about other operations and the receipt by the accused of hundreds of thousands of dollars. This process, I am assured, would require an adjournment of indeterminate length.
The final matter said to require the discharge of this jury is the evidence of AA at p.643 of the transcript. He was asked about the threat made to him by the accused which he finally articulated as: "If you speak to ESD I'll fucking kill you." He was asked: "Did you believe it?", and his answer was: "My word I believed it. He's got a fairly hefty reputation."
As can be seen, after giving the evidence that the accused threatened to kill him if he spoke to the Ethical Standards Department the witness, having said he believed the threat, volunteered the opinion that Mr Strawhorn had "a fairly hefty reputation". The vice of this assertion is, so it is submitted, linked to the evidence which preceded it. Moreover, the belief must be seen to refer to the accused's general reputation, that is, a reputation predicated upon facts extending beyond those of the witness's own relationship with the accused. Additionally, the reputation placed in the context of the preceding warning is likely to be seen as a reputation, at the very least, for threatening or perpetrating acts of violence.
It was submitted by the defence that this evidence was tantamount to being evidence of bad character and the authority of R v Knape[3] was cited.
[3][1965] VR 469 especially at 472
There was yet another aspect to the defence submission on this subject. It was argued that the accused would be irredeemably prejudiced on count 6 of the presentment (Threat to kill De Santo) by this evidence. The reason advanced was that, if the jury were to accept that the accused had a reputation for violence, they may use that evidence to more readily infer that he intended the witness BB to fear that the death threat to De Santo would be carried out (or was at least reckless in this regard). Consequently, this material undermined the defence case that these were merely hollow words uttered by the accused to a friend.
In challenging this contention, it was pointed out by the Crown that the bare threat to kill AA was always going to be before the jury, and it was argued that the expression of AA's belief, whilst negative in nature, was, in all the circumstances, minimal in its potential effect.
Whilst I am not satisfied that this is so, I am satisfied that a jury properly instructed would consider count 6 separately and independently from the evidence adduced on those counts in which AA is involved.
However, the effect of this statement upon those counts, raises different considerations.
The Crown very properly conceded that this was an assertion likely to remain in the minds of the jury. Moreover, it was conceded generally that the evidence of AA, given as it had been by video link, was more likely to make an impression on the jury's combined recollection. To this may be added that such evidence, along with most of the other portions canvassed in these submissions, is likely to have been recorded in the notes which the jury members have obviously been taking.
(I interpolate that note taking is a recent phenomenon which did not exist at the time of Boland's case.)
I am very conscious it may be argued that the influence of this assertion by AA is only as potent as his credibility; and, since the defence approach is to cast the witness as an unbelievable liar, his claim may be encompassed in the general forensic battle.
In normal circumstances that may well provide an answer to the defence complaint. However, pursuant to an understanding between the parties, the defence have agreed to exercise a measure of restraint in attacking AA's character. Even if this constraint were to be regarded as self-imposed, it is arguably a forensic decision which should not be undermined or disrupted by the insertion into the trial of inadmissible evidence. Indeed, even if the witness' credit was to be the subject of a full blown attack the slur on the accused's reputation may remain.
The character of the accused, and I use that term in a general sense, is highly important in this case where the defence is lack of knowledge of, or participation in, the illegal activities.
Given the manner in which the case has been conducted to this point, I would, on balance, regard this matter as justifying the discharge of the jury. Moreover, it does not stand alone. To it may be added issues 2, 3, 4, and 6. I do not need to rate these in significance because, in my view, their combined impact is such that the test for the discharge of this jury is satisfied.
This result must be seen in the matrix provided both by the understandings reached between the parties as to the manner in which this trial should be conducted and the pre-trial rulings.
I note that it is relatively early in a trial scheduled to occupy 12 weeks. Indeed, at this stage there have been only 4½ days of evidence involving, apart from AA, nine professional police witnesses. Moreover, this is not a case where the evidence has involved the recounting of traumatic events.
Even if I am wrong about the need for a discharge on the bases I have enumerated, there is a further reason why I am driven to grant this application.
This trial could not proceed without allowing the defence the opportunity to seek, obtain, and analyse, additional material which may assist in challenging AA's evidence of the participation of the accused in the further illegal activities. This exercise would occasion a delay of uncertain but potentially lengthy duration. It may also have the ancillary effect of extending the time this trial will occupy well beyond the estimate provided to the jury. In such circumstances the only viable solution to these problems is to recommence the proceedings at a future date.
In conclusion, I should indicate that the difficulties encountered to date have stemmed to a considerable degree from the attempt to confine the charges to isolated examples of illegality in what is alleged to be a wider kaleidoscope of corruption. I think these problems are highly likely to emerge again during the evidence of other key Crown witnesses; for example, the witness Paton. Accordingly, the parties need to work to clearly define the boundaries of the evidence which is to be led. This is a case in which the nature of the association between the accused and the principal Crown witnesses is of paramount importance. In this regard cases such as Harriman v R[4] may provide some guidance.
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[4](1989) 167 CLR 590
CERTIFICATE
I certify that this and the 10 preceding pages are a true copy of the reasons for ruling of Coldrey J of the Supreme Court of Victoria delivered on 16 March 2005.
DATED this 16th day of March 2005.
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